With just a month to go before the November 3rd election, a group of 40 experts on elections and democracy are imploring Congress to support a bill that would give states more time to tally election results.
A letter the group sent to Senate and House members expresses concern that delays due to close races, legal disputes, and the unprecedented number of mail-in ballots expected during the Covid-19 pandemic could prevent states from being able to fully and accurately count votes by current deadlines, resulting in a constitutional crisis.
“In the event of one or more protracted disputes at the state level, the addition of 24 days to the deadline for determining electors could spare the country a debilitating national political crisis,” the letter notes. “Otherwise, it may fall to the new Congress (on January 6) to determine the winner of the electoral votes of one or more states, under the troublingly ambiguous provisions of the Electoral Count Act of 1887. This could produce a grave national controversy just two weeks before the inauguration.”
The group, which includes research, legal, and policy expertise on election administration across a wide range of institutional affiliations, is specifically asking Congress to back a bill Senator Marco Rubio introduced on August 6th, which would extend the federal safe harbor deadline from December 8, 2020 to January 1, 2021, and the Electoral College vote from December 14 to January 2.
The experts hope their letter can help generate newfound bipartisan support for the measure, noting, “the extension of these deadlines would not favor or prejudice either political party,” and that “as experts who study the election process, the resolution of disputed elections, and similar matters, we believe Senator Rubio’s bill is good insurance for the integrity of the election and ought to be adopted.”
If the letter is successful in spurring enactment of the measure, states would gain valuable time to resolve any election disputes prior to Inauguration Day.
The full letter is attached below.
I broke my usual rule not to sign mass letters for this one. It’s that important.
The following is a guest post from Charlotte Blatt and Kate Hamilton, J.D. candidates at Yale Law School:
Young voters get a bad rap. In 2018, voters ages 18-29 made up just 13% of the electorate despite comprising 22% of the voting-age population – a poor turnout but an improvement upon prior elections. Yet young people are excited to participate this November. An August NextGen America/Global Strategy Group poll found that 77% of 18 to 35-year-olds from battleground states “definitely will vote” in the election, up from 70% just a month earlier. However, among other challenges sparked by the COVID-19 pandemic, barriers to young voter participation have reached new heights, particularly regarding the increasing reliance on vote-by-mail.
In response to the COVID-19 pandemic, civic participation groups have urged widespread expansion of vote-by-mail, and many states have heeded the call. While vote-by-mail is certainly attractive from a public health perspective, it is no panacea for democracy. Indeed, civil rights groups have warned that overreliance on vote-by-mail could have the effect of “inadvertently disenfranchis[ing]” Black, disabled, elderly and Native American voters. In addition to these recognized possibilities, the unprecedented use of mail ballots also runs the risk of further disenfranchising youth voters by multiplying the impediments young people must overcome to cast a ballot, increasing their chances of casting a “lost” or uncounted ballot.
Youth voters face significant barriers to voting by mail. Recent polling found that “more than half of voters under the age of 35 say they don’t have the resources or knowledge they need to vote by mail in November,” and there is reason to believe that this resource deficit is unevenly distributed across race, educational attainment, and income. In 2016, young people without college experience were least likely to vote-by-mail, and youth of color without college experience were even less likely to vote-by-mail than their white counterparts. These historical disparities suggest that heavy reliance on mail voting this November will require addressing the hurdles facing young people, particularly young people of color.
Chuck Lindell thread starts here:
I talked to Warren Olney for KCRW’s “To the Point.”
Here’s the order.
When the district court issued its order I was quite surprised there was no focus on trying to implement this so close to the election. As the appeals court wrote: “Finally, given that thousands of ballots without straight-ticket voting have already been mailed in accordance with a law that was passed three years ago and the immense difficulty described by the Secretary of managing an election with different sets of ballots for in-person and mail-in voting, the public interest weighs heavily in favor of issuing the stay.”
I spoke with Madeline Brand on KCRW’s Press Play.
Native American Rights Fund:
On September 25, 2020, a Montana court permanently struck down a state law that severely restricted the right to vote for indigenous people living on rural reservations.
Western Native Voice v. Stapleton, filed in March of this year by Native American Rights Fund , the American Civil Liberties Union, and ACLU of Montana, challenged the so-called Montana Ballot Interference Prevention Act (BIPA), a law that imposed severe restrictions on ballot collection efforts that are critical to Native American voters living on rural reservations.
The law set an arbitrary limit on the number of ballots an individual could collect and also restricted the categories of individuals who were permitted to collect ballots. These limitations were intended to suppress turnout on rural reservations, where geographic and socioeconomic barriers to voting make ballot collection even more critical.
New Brennan Center report.
You can find the proposed resolution at this link. Governor Wolf (a Democrat) has condemned the move (via Ryan Grim).
I’m not saying that the Pa legislature would use the power, but this is a first step toward trying to potentially appoint electors directly.
Keep an eye on this.
Jim Rutenberg in the New York Times Magazine:
The strategy was now in full view: Flood every state, every television news network, every newspaper and news feed with manufactured evidence of fraud to suppress Democratic votes before Election Day — and to knock them out of state-by-state tallies in the courts and counting rooms afterward. In September, Trump’s power to affect the outcome reached a new level when Justice Ruth Bader Ginsburg died and Mitch McConnell lined up the votes for a fast confirmation of the Supreme Court’s sixth conservative member. Increasingly, longtime election experts were seeing “a pathway for something other than voters choosing the next president,” said Richard Hasen, a professor at the University of California-Irvine School of Law who writes the widely read Election Law Blog.
The movement to convince the country that voter fraud is a present danger to democracy has itself become a present danger to democracy. It has melded fully into the president’s re-election campaign. The argument is now that the only way Trump can lose this election is through sweeping voter fraud that benefits his opponent; any outcome in which he doesn’t win, therefore, can be considered illegitimate. This, Trump says, is why he refuses to commit to a peaceful transfer of power: Only fraud can beat him, and fraud is everywhere.
But unlike four years ago, when his campaign laid the groundwork for a similar argument, Trump is now aiming the full force of the United States government — its lawyers, its Postal Service, even its armed officers — at a false threat that has been used to disenfranchise American citizens since the darkest days of the republic. He is doing it in the service of one goal: to maintain his own grip on power.
“When you see them cheating with those ballots, all of those unsolicited ballots, those millions of ballots, you see them, any time you do, report them to the authorities,” he said at a late September election rally in Toledo, Ohio. “The authorities are waiting, and watching.”
On December 7, 2000, in the midst of the Florida recount crisis, Florida Senate President John McKay and Speaker of the House Tom Feeney announced that, “the Legislature would choose the electors, as permitted by the U.S. Constitution, if the court disputes were continuing and there was not yet ‘finality’ on December 12.” When the Florida Supreme Court announced a statewide recount order, the stage was set for a confrontation. So long as there was a chance for the December 12 “safe harbor” to be violated, the Republican legislators were set to act.
On Tuesday, December 12th, the Florida House did just this, voting in George W. Bush’s electors as the state’s official slate to the Electoral College. The next day the Florida Senate was prepared to do the same. It was at this point that the U.S. Supreme Court made the whole matter largely moot by issuing its ruling in Bush v. Gore. With Gore’s quick concession, the need for the Florida Senate to act disappeared.
And check out Zelden on this podcast, talking about the third edition of his Bush v. Gore book.
The Wisconsin GOP sent a letter yesterday claiming that it would be improper “electioneering” and/or vote buying for MLB and the Brewers’ Racing Sausages to encourage early voting.
The legal citations in the letter seem … off.
The assertions with respect to campaign finance seem … at odds with the rather emphatic views of the Wisconsin GOP in particular on uninhibited election-related spending as a core component of free speech.
But I’m most baffled by the political calculation. Picking a losing legal fight with MLB and the Racing Sausages seems like an odd late-September strategy.
This looks terrific with a wonderful lineup.
The latest from the National Task Force on Election Crises.
This should get some attention.
Very interesting way that this case got resolved, and it does raise the question if there is anyone with standing to appeal given that Wisconsin’s executive branch is fine with this extension.
Observation from Marty Lederman:
Under state law the deadline for receipt of the mail-in ballots would have been noon on election day.